Gulf, C. & S. F. Ry. Co. v. Gilbert

• Decision Date: 04 October 1893
• Parties: GULF, C. & S. F. RY. CO. v. GILBERT.
• Court: Texas Court of Appeals

23 S.W. 320

GULF, C. & S. F. RY. CO. v. GILBERT.

Court of Civil Appeals of Texas.

October 4, 1893.

On rehearing.

FISHER, C. J.

A re-examination of this case, on motion for rehearing, leads to the conclusion that the judgment heretofore rendered by this court, affirming the judgment of the court below, should be set aside, and the judgment of the lower court reversed, and the cause remanded. The gist of the plaintiff's action against the appellant was for damages in the nature of rents, or the value of the use of certain gin machinery that was delayed en route in shipment by the appellant and its alleged partnership carrier. The measure of damages submitted to the jury by the charge of the court was the reasonable rental value of the machine during the time of the delay in its delivery occurring after the time when it should have been delivered. It is urged that this charge is erroneous, for the reason that it is not the measure of damages made by the pleadings and the evidence. The amended petition, upon which the case went to trial, asks for a recovery of the value of the use or rental value of the machine during the time of the delay, but states no facts showing that the appellee is entitled to such damages. It appears from the facts alleged, as well as those proven, that the machine was purchased and shipped by Hurlbut & Semple, merchants, who were dealing in such machinery, and that the carrier received the machine for shipment, consigned to them at Brownwood, Tex. In shipments of this character to merchants, of the class of goods in which they deal, the ordinary measure of damages resulting from delay in the shipment or delivery of the article shipped is the difference between the value of the property at the time it did arrive and the time when it should have arrived. Any sum sought to be recovered beyond this amount is necessarily special damages, and the pleadings must allege the facts that entitle the plaintiff to so recover such damages, and these allegations must be proven, in order to warrant a recovery by the plaintiff. It appears from the evidence that the machinery was purchased by Hurlbut & Semple for the appellee, Gilbert, to be used by him in ginning cotton, and the rental value of such machinery during the period of the delay is also shown. But do the pleadings aver, and does the evidence show, that the appellant, or its alleged copartnership carrier, at the time the contract of shipment was entered into, knew of the purposes...